¶1By the Court.
¶2The construction of the contract adopted at the circuit is correct. The defendant agreed to deliver his then growing crop of corn, at a future day, in good, merchantable order. The term “ good, merchantable order,” as thus used, necessarily implies that the corn was to be of merchantable quality. In other words, the parties expressly bargained for a merchantable commodity. See Reed v. Randall, above.
¶3But if, as the defendant insisted in the court below, the terms used related merely to the condition of the corn, and did not include its quality, then this implies an agreement that the corn bargained for should be of merchantable quality, as the contract was what is called executory. A contract of that nature always carries an obligation on the part of the vendor that the article to be delivered shall be, at least, salable; at least of medium quality or goodness. 23 Wend. 350. Such implication is not repelled or limited, in the present case, by the express stipulation that the corn should be in merchantable order, if, as is *316now assumed, that stipulation he held not to apply to the quality of the corn.
¶4The single load of corn offered hy the defendant was unmerchantable, and the plaintiff’s assignors had "a right to decline to receive it, as they did, on that ground. As the defendant subsequently declined to deliver the corn, because that load was not received, he was chargeable with a breach of the contract.
¶5The measure of damages for such breach was the difference between the market value of the corn, at the time and place specified for its delivery, and the contract price, together with the sum paid by the purchaser, and interest thereon. That measure being applied, the evidence authorizes a recovery to the amount of the verdict.
¶6The judgment should be affirmed.
¶7All the judges concurred.
¶8Judgment affirmed, with costs, and ten per cent, damages.